BREAKING NEWS: Court tosses EOBR regulation on harassment argument

Friday, Aug. 26, 2011 –It took only one of the three arguments raised by the Owner-Operator Independent Drivers Association for the U.S. Court of Appeals for the Seventh Circuit to vacate the electronic on-board recorder regulation.

The opinion filed Friday by the court vacated the rule and sent it back to the agency for further proceedings consistent with the ruling.

“It’s a fantastic decision,” OOIDA President Jim Johnston said. “The decision dealt with the issue of harassment of drivers, but the court left room to come back and challenge other aspects if the agency gets overly enthusiastic about how they want to monitor truckers.”

The regulation under fire was the 2010 final regulation mandating the use of electronic on-board recorders for companies with a safety history that reflects a 10 percent or greater level of non-compliance with the hours-of-service regs in one compliance review.

OOIDA filed suit against the agency contending that the rule was arbitrary and capricious because it does not “ensure that the devices are not used to harass vehicle operators,” as required by law. The Association’s lawsuit also contended that the cost-benefit analysis failed to demonstrate the benefits of the technology and that the EOBRs violate the Fourth Amendment.

The opinion from the Seventh Circuit, prepared by Circuit Judge Diane Wood, stated that the court “need address only the first issue” of driver harassment.

The opinion states that if an agency “fails to consider a factor mandated by its organic statues, this omission is alone ‘sufficient to establish an arbitrary-and-capricious decision requiring vacatur of the rule.’”

FMCSA was directed by Congress back in the late 1980s to “ensure that the devices are not used to harass vehicle operators.”

“There is no question that section 31137(a) is mandatory,” Judge Wood wrote in the opinion.

She wrote that FMCSA’s first argument that it did consider driver harassment can be set aside immediately.

“The FMCSA suggests that a single conclusory sentence in the final rulemaking to the effect that the Agency ‘has taken the statutory requirement into account throughout the final rule’ is enough by itself to satisfy section 31137(a). It is not,” Judge Wood wrote.

Judge Wood equally dismissed the agency’s second argument contending that driver harassment was considered during the rulemaking process.

“The Agency’s back-up argument fares no better than its first one,” she wrote. “For the first time in its consideration of EOBRs, the Agency’s brief before this court introduces the argument that its consideration of privacy and the Privacy Impact Assessment it produced also addresses the statutory factor of harassment.

“This argument is too little, too late.”

The ruling vacates the regulation and sends it back to the agency for further proceedings consistent with the opinion.

Of note, the final rule struck down in the opinion is not the only electronic on-board recorder mandate pending from FMCSA. The agency already has a second rulemaking in progress that would mandate EOBRs in all trucks.

While there are many options before the agency at this point, including a possible appeal of the Seventh Circuit’s decision, the agency could retool the regulation or even simply move forward with a full mandate while attempting to address driver harassment in such a way that it relieves the court’s concerns raised in the opinion.

In the opinion, Judge Wood also outlined a couple ways the agency should and/or could address driver harassment.

In one instance she wrote that the agency needed to clearly define a distinction between productivity and harassment and “must also describe what precisely it is that will prevent harassment from occurring.”

The court also suggested that a comprehensive study of motor carriers both using and not using EOBRs could prove beneficial.

“The Agency needs to consider what types of harassment already exist, how frequently and to what extent harassment happens, and how an electronic device capable of contemporaneous transmission of information to a motor carrier will guard against (or fail to guard against) harassment,” Judge Wood wrote.

“A study of these problems with EOBRs already in use, and a comparison with carriers that do not use these devices, might be one obvious way to measure any effect that requiring EOBRs might have on driver harassment.”

“Of course, we considered this absolutely unnecessary invasion of driver’s privacy rights that would accomplish nothing in the way of commercial vehicle safety,” Johnston said of the regulation.

“The court’s decision may very well slow the initiative of heavy vehicle monitoring and give drivers some reprieve from what we consider to be an intrusion of privacy.”